What is it about the GSL that is really a deal breaker?

[cdrcjsn]

Corjay: Your argument that Wizards retaining the right to redefine the contract without discussion, notice or a remediation period is not a standard for any contracts.

Well, month to month lease agreements in California can be changed at the whim of the landlord (except for rent increases of 10% or more). They can change the terms on the 30th of the month and the tenant has the choice to accept it or not, even if the next month's payment is due the following day. The tenant doesn't even need to sign the new lease. Payment is considered acceptance.

Redefining the contract unilaterally is a non-issue for me. it's their playground, they're just letting people play in it.

The lack of notice or remediation period is of greater concern.

I guess it comes down to whether or not you think WotC is going to be reasonable in upholding these. If you're of the opinion that they won't make any moves that doesn't make business sense, then it's fair to think that they'll allow 3rd party publishers time to monitor themselves without petty lawsuits. If they even notice at all, the most action they'll probably take is to send a friendly reminder of "hey, this is not how you're supposed to be doing this, please check yourself."

If you think that they're out to purposely get 3rd party publishers, then the lack of warning is something to be feared.

Frankly, I see a lot of the clauses of the GSL as something that WotC put out so that they can enforce things in their favor in case of egregious abuse of the license. If a publisher is a few days late correcting something because of a change in the GSL, I doubt they'll take any action other than notification to the publisher (if that).

I guess I'm in the "they're not out to purposely screw 3rd party publishers, but they have no real vested interest in seeing others succeed," camp.

With that said, the only ones that will really suffer from the GSL are ones that require selling OGL stuff to stay afloat and cannot invest in a new product line.

 

[Corjay]

Well, we already have tons of back and forth on this.

First, WotC's website does go down, pretty regularly I am afraid, the forums much more often than the DnD pages, but still, it is (was) down when I started reading this thread. That said, I really don't think that has an effect on anything and isn't a point against the GSL (at least not to me).

Second, trust is often based on the individuals within a business that one has dealt with. It is obvious to people that have spoken to them at GenCon or via email, etc. that Scott Rouse and Linae Foster strongly support open gaming, yet the GSL is clearly not what they were hoping for either. This means that other people within WotC have had a profound effect on the GSL and are likely to have that effect on any future changes or licenses. In other words, we trust Scott and Linae, but we really do not trust the people "above" them.
The level of trust the community had for Ryan Dancey when he was working on the OGL and d20 STL was, I would say, an order of magnitude greater than what the community has for WotC as a whole right now. Scott and Linae are trusted but there is a general feeling that they don't have the power to do what they might really want to do.

When you take that reduced level of trust into account, clauses in the GSL become difficult for publishers (mostly established and/or print publishers) to swallow. Yes, the d20STL could be changed at will, but there was a "cure" period where publishers could work to bring products in line with the STL and avoid having to pulp books. Right now, the GSL could be changed in a way that puts your latest print product in violation (even if it is a minor violation) and could end with you losing the right to publish under the GSL AND have to pulp your stock of books. Is this a "probable" outcome? No, honestly, it just isn't probable at all (in my opinion). HOWEVER, it does give print publishers something to fear. I really can't describe clearly how terrifying something like that would be for a publisher. Add a down economy and slow sales into the mix and established publishers are clearly slow to sign onto the GSL.

The GSL is similar to other licenses in that it strongly favors the licensor but a lot of publishers feel that it simply does not offer enough in exchange for the rights they have to surrender. It is easy for some publishers to simply use the "copyright route" (as it has been described on message boards) than to worry about the GSL. Others just don't want to bother with the GSL at all. As a license, well, I have seen worse, but I personally feel that this one is poorly written and leaves clauses open to wide interpretation.

It comes down to Corjay's point about trust and business being based on trust. Right now the smaller publishers really don't trust WotC. They trust PEOPLE at WotC but all of us have seen enough changes in staffing that nobody knows who the "people" will be next year. I have my notes from last year's meeting with Scott Rouse and Bill Slaviscek on my desk right now. I can assure you that WotC failed to deliver on a minimum of 3 promises from that meeting. This hasn't helped engender trust on the part of publishers.
I do think more publishers will sign on to the GSL in the future, but I also expect established publishers and print publishers to hang back a bit and be very cautious. They will want "clarifications" of material in the GSL to insure that everyone has a clear understanding of the various clauses and that they mean the same thing to everyone involved. PDF publishers and smaller publishers without significant OGL backstock are likely (and so far are) the first adopters.

Okay, time to take my kids to the swimming pool ...
Patrick

Well said. But there is also a difference between a promise and a contract. A promise is a statement of intent. It's nothing more than a stated goal. A contract (in this case, a license) is legally enforceable and is understood by both parties to be a contract. Politicians break hundreds of promises and we elect them to the highest positions of authority knowing that they will barely fulfill half their promises, even, and especially, the Presidency. Promises mean little in today's world. So a broken promise is in no way the same as a terminated contract. They also serve two different purposes. If you can provide an example of where WOTC has terminated a contract to the detriment of anyone, then I concede that they have indeed broken trust in the business community.

I will, however, concede the point that it is a deal breaker for some for the 3-fold reason that 1) top tier upheavals, 2) broken promises, and 3) the lack of notification, together, leave question regarding the reliability of WOTC's decision-making. But I still believe it to be an unfounded fear all the same, as a committee, not just a single person, is responsible for deciding the fate of the GSL or its licensees.

So, then, the deal breakers we have:

1) Subsection 6.1.
2) Termination of license without warning.

I'm with cdrcjsn in reply to Nadaka.

The unilateral terms of the agreement, including the ability to change the agreement without notice.

The total disregard for the rights of others to produce non-infringing works compatible with D&D.

I'm not sure what you mean about this. Are you referring to Subsection 6.1? If so, then I suppose we're in agreement. But if you're referring to section 10, I don't think it really hinders anyone in the way you suggest. It merely protects WOTC from the licensee's infringement of another's product and from imitators infringing on WOTC's IP. If you could spell it out more, I could understand better.

 

[AdmundfortGeographer]

I have never paid a dime to WOTC for the use of their services. Access to the GSL is 100% free.

I believe the reference to "you agreed to pay their costs" was a reference to the GSL's terms that you as a GSL user have agreed to pay WotC's court fees if WotC desires to sue or you sue WotC. Meaning there is effectively no financial barrier to frivolous lawsuits on WotC's part except for the loss of time.

 

[Corjay]

I believe the reference to "you agreed to pay their costs" was a reference to the GSL's terms that you as a GSL user have agreed to pay WotC's court fees if WotC desires to sue or you sue WotC. Meaning there is effectively no financial barrier to frivolous lawsuits on WotC's part except for the loss of time.

In that case, I already addressed that. But I'll say it again, there is no such provision. That clause only requires court costs to be paid by the licensee in the case the licensee loses at court, not if it wins. Again, no court in the world would allow the winner to pay all the court costs no matter what a contract says, and this contract does not say that.

 

[pemerton]

IANAL:
Here are the poison pills...

1: WotC retains the right to terminate the GSL for any or no reason at all.

I doubt that this a dealbreaker for many 3pp. It's fairly standard in an IP licence, I think.

2: Product lines published under the GSL most stop being published under the OGL now and forever.

This is the biggest issue, especially because of the expansive definition of "Converted Product" (anything which has the same content, which makes nostalgia-based conversion difficult - I think this is a major problem for the Advanced Players Gide).

3: WotC reserves the right to change the terms of the GSL with no notice whatsoever.

The implications of this need to be analysed by a contract lawyer. I don't think that this empowers WoTC to make any or arbitrary changes.

4: WotC seems to have the right to take over IP that you publish under the GSL, but that
5: Licensees are required to cooperate with WotC in defence if its IP.[/quote
4 is not true. 5 is not a big deal, I don't think.

6: Licensees are forbidden from pursuing legal action against WotC for any reason.

This is not true.

7: Licensees are required to cover WotC legal costs in any event, so even if you were to sue WotC and win, you would be required to pay their lawyer fees, and the fine that they have been charged.

Civil suits don't issue in fines. Also, this clause needs to be analysed by a contract lawyer who knows something of the law of penalties.

And no sane person would ever agree to it. Much less any person who depended on GSL products for their livelihood.

I don't think that Mongoose, Goodman, Expeditious Retreat etc are insane - even though I think some do depend on the GSL for their livelihood.

Necro has quite specific reasons for not signing on - it's not a general or in-principle objection that has stopped Clark from signing on, as far as I can tell from his posts and announcement.

 

[see]

Even still that doesn't make 4e's termination clause any less standard practice, and as I said, this contract applies to any product produced under it indefinitely. So WOTC can't terminate the contract later and then say that a company must stop selling that product.

Wrong. Effect of Termination, 11.3. "Upon termination, Licensee will immediately . . . destroy all inventory and marketing materials in Licensee’s possession bearing the Compatibility Logo." This is all GSL product, because 4.2 says you must put the logo on all GSL-licensed product.

So, let's say you take delivery from the printer of ten thousand copies of your GSL-licensed 4e-compatible campaign setting at noon on June 5th, 2009. It has the logo as per 4.2. Now, WotC sends you a termination notice at 12:05 PM. Under 11.3, you have to destroy all ten thousand copies, and bear all costs associated with destroying it.

 

[Corjay]

Wrong. Effect of Termination, 11.3. "Upon termination, Licensee will immediately . . . destroy all inventory and marketing materials in Licensee’s possession bearing the Compatibility Logo." This is all GSL product, because 4.2 says you must put the logo on all GSL-licensed product.

So, let's say you take delivery from the printer of ten thousand copies of your GSL-licensed 4e-compatible campaign setting at noon on June 5th, 2009. It has the logo as per 4.2. Now, WotC sends you a termination notice at 12:05 PM. Under 11.3, you have to destroy all ten thousand copies, and bear all costs associated with destroying it.

I don't know how I glossed over that subsection. I thought I read it through. I agree, that subsection alone is enough for a deal breaker in itself.

So we have:

1) No cushion period for discontinuing OGL products in product line conversion (Subsection 6.1)
2) No cushion period for termination of GSL (Subsection 11.1)
3) Total destruction of product line upon termination of GSL (Sebsection 11.3)

 

[PatrickLawinger]

I don't know how I glossed over that subsection. I thought I read it through. I agree, that subsection alone is enough for a deal breaker in itself.

So we have:

1) No cushion period for discontinuing OGL products in product line conversion (Subsection 6.1)
2) No cushion period for termination of GSL (Subsection 11.1)
3) Total destruction of product line upon termination of GSL (Sebsection 11.3)

Yeah, I thought you guys had already discussed those above. There are so many threads on so many boards about this ...

Basically, take what you have listed into account and include a reduced level of trust in the "powers that be" at WotC and it is easy to see why established print publishers are afraid to sign on.

When you look very carefully at the license and the ability to create "compatible" products using copyright law, the license is pretty unfavorable.

The license DOES allow you to do more with some of WotC's material, and it allows you to format monster stat blocks, powers, classes, etc. the same as WotC's published format. The ability to use the "look and feel" is potentially pretty helpful, but it is hard to say how much. That said, restrictions on using some material (like devils/demons and republishing standard stat blocks) are, frankly, just stupid and a pain in the, um, neck.

It boils down to what types of products you want to make because this changes what the benefits of the license are for you and what things you can or can't do. It is a LOT easier for .pdf publishers to adopt this license right now. I think this is foolish on WotC's part. If I were WotC I would WANT companies like Green Ronin, Paizo, and Necromancer Games adopting my new game system and making products for it. These are companies with proven track records in terms of production quality, following the "spirit" of the open gaming licenses, and, frankly, making damn good products.

You see lots of fans on both sides of the border on this, sometimes praising or maligning publishers when they do or do not accept the license. The individual decisions each publisher needs to make are a bit more difficult, and will vary from publisher to publisher.

Patrick

 

[Ranger REG]

1) WotC reserves the right to change the license at any time.
2) You agree WotC will not inform you when the license changes. The change will be posted on the Internet.

Meh. Both are standard in the d20STL.

Besides, we have so many insiders that they will bound to leak about the license change, like when they added the "Disney-fied" Quality Standards Clause.

4) You agree to be bound by the changed license as soon as you sell a single item after the license changes -- whether or not you know of the change or agree to the change.

IOW, you don't have a grace period? That sucks.

 

[Varianor Abroad]

Again, no court in the world would allow the winner to pay all the court costs no matter what a contract says, and this contract does not say that.

Oh? You sound like a lawyer. (I am not, but I pay them and read legal materials all the time.) May I suggest that this is a dangerous statement for anyone engaged in the practice of law to make? I have seen court after court in state after state issue orders in direct contravention of black letter law. None of the third party publishers out there, with the possible exception of modest corporations like White Wolf and Paizo, have the resources to even contemplate the expenses of a court battle over that clause, let alone fight a partial award of certain expenses and specific attorney's fees.